NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee George A. Cook when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (MACHINISTS)
DISPUTE: CLAIM OF EMPLOYES: That Machinist Helper F. E. Hagerman was improperly used as a machinist from August 4 to 15, 1945, inclusive, and that accordingly the carrier be ordered to additionally compensate Machinists John Hawkins and S. B. Barney, by equally dividing among them, at the time and one-half rate, all hours worked as a machinist during the said period by Machinist Helper Hagerman.
EMPLOYES' STATEMENT OF FACTS: At Council Bluffs, Iowa, the carrier used Machinist Helper F. E. Hagerman to perform machinists' work on the 8 P. M. to 5 A. M. shift daily between August 3 to 16, 1945.
Machinists John Hawkins and S. B. Barney, hereinafter referred to as the claimants, were regularly employed on the 7 A. M. to 4 P. M. shift. These claimants were available to and requested the privilege of alternating daily in the interest of protecting the service on the 8 P. M. to 5 A. M. shift during the period that Helper Hagerman was assigned as a machinist on that shift. However, on August 15, the master mechanic removed Hagerman as a machinist and the claimants were assigned to protect the service on the 8 P. M. to 5 A. M. shift on August 16, 17, 18, 19 and 20. Thereafter this shift was protected by the regular assignment in accordance with the agreement.
POSITION OF EMPLOYES: It is a fact that during the period of August 4 to 15, 1945, inclusive, the carrier improperly used Machinist Helper Hagerman to perform machinists' work, as defined in Rule 61 of the controlling agreement.
Mr. Hagerman was regularly employed as a machinist helper and retained his seniority rights as such. However, due to the emergency he was temporarily upgraded to a machinist, under the provisions of a memorandum of agreement effective September 15, 1943, between System Federation No. 99 and the carrier. This memorandum of agreement was cancelled effective August 8, 1945, which is verified by the submitted copy of Notice to Shopmen, dated at Council Bluffs, Iowa, August 4, 1945, signed by B. E. Perrin, general foreman, and identified as Exhibit A. It will be noted that this notice provided that upgraded Machinist Hagerman would revert back to his former status as a machinist helper.
craft than to the other five crafts-yet that is what the machinists are here attempting to do as members of all crafts comprising System Federation No. 99 were and are employed thereunder on this property.
The carrier calls attention to this Division's Docket No. 297, Award No. 307, dated February 14, 1939, involving the same parties. In this docket it is said, "The employes answer that if these men were not entitled to seniority, under the general rules, the local committee and the general chairman of one of the federated unions could not change the general rules laid down for all of the crafts. The seniority rule, applicable to all employes, could not, the employes insist, be waived with respect to one of the crafts." The employes now are attempting to do what they said could not be done in the foregoing docket. The memorandum agreements (carriers Exhibits Nos. 1, 2 and 3), upon which the employes base their claim in the instant case, govern the working conditions of all the crafts comprising System Federation No. 99 on this property, and apply alike to all the crafts of the federated unions and may not be changed by the unilateral action of one craft.
The carrier maintains there is no merit to the employes' claim because(1) Machinist Helper Hagerman was upgraded in accord with the duly negotiated and consummated memorandum agreement effective June 16, 1941, which was superseded by one effective September 15, 1943, which could only be terminated in accordance with the provisions of the Railway Labor Act; (2) memorandum of agreement, bearing effective date of August 20, 1945, was negotiated and consummated with the express provision that it superseded the existing memorandum agreement; (3) helpers of the machinist and other crafts of the Federation were set up and used as mechanics, during the period covered by this claim, at many points on this railroad and no protests were presented as the result thereof.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Memorandum of Agreement between System Federation 99 and the carrier, effective September 15, 1943, contained a cancellation clause. It reads:
The management received a letter from the employes dated July 31, 1945, reading in part: